6 C O N T E X T 1 4 2 : N O V E M B E R 2 0 1 5 The report of the chief planning officer recorded the views of the council’s conservation officer that the proposed development would not cause substantial harm or loss of significance to the conservation area or to the setting of any of the listed buildings in the vicinity of the application site for the purposes of paragraphs 132 and 134 of the National Planning Policy Framework (which have replaced the equivalent paragraphs in PPS5). The report went on to refer to sections 66 and 72 of the Listed Buildings Act, noting that special regard must be given to the desirability of preserving surrounding listed buildings and the character or appearance of the Penshurst Conservation Area, even though the potential harmwas limited. It concluded, however, that the benefits of the proposal in terms of the provision of affordable housing carried greater weight. The High Court, perhaps going further than the decision of the Court of Appeal in the Barnwell Manor Windfarm case, held that a finding of harm to the setting of a listed building or a conservation area gave rise to a ‘strong presumption’ against planning permission being granted, and that a local planning authority could strike the right balance only if it was conscious of that statutory ‘presumption’ and if it demonstrably applied that presumption. The court held that even though the chief planning officer’s report did cite the relevant sections of the Listed Building Act, it did not go on to apply the statutory presumption in the correct way. Again, the court stressed that this harm, although limited, was not merely another material consideration to be weighed against others in the normal way. Blackfriars Street, Stamford The High Court has considered the point again in a decision as recent as May of this year, in a case involving potential impact to listed buildings in the Blackfriars Street Conservation Area in Stamford, Lincolnshire. In this case, South Kesteven District Council granted planning permission for development adjacent to two Grade II listed buildings owned by the trustees of the Cecil Estate Family Trust. The trustees had objected to the application on the basis that the development might have affected the structural integrity of two curtilage listed buildings and applied for judicial review on the basis that the council had not applied the duty in section 66 in the correct way. The council accepted that its officer’s report contained no assessment of whether the proposed scheme would have an impact on the listed structures. But it argued that the words ‘development which affects a listed building or its setting’ restricted section 66(1) to applications for planning permission for development of the listed building or its immediate setting (that is, its curtilage) and not to a proposed development on a neighbouring site which would harm the listed building or its setting. The council also argued that any proposed development which did affect the structural integrity of a listed building would need listed building consent, and it would be at this stage that the impacts would be assessed, rather than as part of the determination for planning permission. The council accepted that its officer’s report contained no assessment of whether the proposed scheme would have an impact on the listed structures on the basis that section 66 was expressed in terms of how the proposed development would affect the setting of a listed building and not whether the development would affect the listed buildings themselves (including the curtilage listed buildings). The High Court held that the council’s interpretation was too narrow, and inconsistent with the scope of section 66(1), as set out in the Barnwell Manor case. The words ‘development which affects a listed building or its setting’ in section 66 clearly covered development on a neighbouring property and embraced development which would have an impact on a listed building or its setting, whether direct or indirect, and whether harmful or beneficial, or a mixture of the two. The court also rejected the council’s reliance on the listed building consent regime, which served a different purpose in only requiring consent for works for the alternation or extension of a listed building, rather the purpose of section 66, which was to avoid damage to such a building or its setting before it occurred. For these reasons, the court quashed the planning permission granted by South Kesteven District Council. Conclusions These cases are crucial in clarifying the weight that a local planning authority should attribute to the preservation of the setting of a listed building or the listed building itself (as demonstrated by the Stamford Blackfriars Street case), and to the preservation of the character of a conservation area, when considering a planning application and how this should be balanced against other material considerations. Following these decisions, local planning authorities will need to take extra care to ensure that they give these factors the proper weight and that this weighting is fully recorded in their decision-making process in any proposal that has a potential impact on a listed building or a conservation area. As the Forge Field case shows, even if the report of a planning officer or conservation officer makes reference to sections 66 or 72, a decision to grant planning permission may still be vulnerable to challenge by way of judicial review if the preservation of the listed building or conservation area is not given considerable weight and importance. The decisions should be very much welcomed by those seeking to object to planning applications on the basis of the impact on a listed building or a conservation area, as they confirm that even if the harm is not considered substantial, it must still be given considerable importance and weight when balanced against other material considerations, even in the context of other strong policy grounds in favour of development, such as renewable energy generation or affordable housing. Ultimately the result should be stronger protection for these heritage assets. Tom Deards is a solicitor in the legal department of the Canal & River Trust.
RkJQdWJsaXNoZXIy MjgyMjA=